4.3.1.3 Methods employed to facilitate access to legal
aid in South Africa
Various methods for delivering legal aid services are employed
in South Africa. The Legal Aid Board has put together a string of measures such
as uncompensated private counsel (pro bono), state-compensated private
counsel (judicare), state-funded candidate attorneys in rural law
firms, state-funded law clinics; state-funded justice centres (one
stop legal aid shops?), private specialist law firms, independent university
law clinics, para-legal advice offices and legal insurance schemes in
furtherance of the legal aid scheme.196
It is useful to note that, in 1998, a National Legal Aid Forum
was convened and it was agreed that state-compensated private counsel
(judicare) had to be replaced with a justice centre model. However,
since 1994, the Board has been contracted on behalf of the state to deliver
legal services in criminal cases. This has had a major impact on its ability to
continue using the judicare approach.197 It is worth noting
that the South African Legal Aid Board has been operating as the facilitator of
the South African peoples? access to
193 Ibid. (note 188) S. 35 (2) (C).
194 Ibid. Section 35 (2) (G).
195 See more details in South African Legal Aid Guide 2002(2002)
18.
196 See more details in GW Cook A History of Legal Aid in
South Africa (1974) 28.
197 See details ibid.
justice. Thus, it is crucial to analyse the operation of this
Board, the pro bono and judicare models, the Justice Centers,
and models employed in South Africa.198
4.3.1.3.1 Brief overview of the operation of the South
African Legal Aid Board
The Legal Aid Board has been the main vehicle for the delivery
of legal aid services in South Africa.199 It was given complete
discretion as to how it would offer legal assistance to indigent persons. To
this ends, it established a set of working rules which are incorporated in the
Legal Aid Guide.200 In terms of the Legal Aid Act, the
Board is required to render or make available legal aid to indigent
persons?.201 The objective of the Board is to render or to make
available legal aid to indigent persons as widely as possible within its
financial means.202 To this end it excludes assistance for legal aid
in certain categories of criminal203 and civil cases,204
even though a person qualifies in terms of the means
test?.205
The Board views access to justice as the provision of
different means by which the poor can achieve something akin to equality before
the law and it equates equality before the law with meeting the need for legal
assistance. It intends to achieve this through an access to justice approach
that exhibits wide-ranging streams. The role of each of these different
mechanisms in delivering legal aid services in South Africa are briefly
analysed to see what Rwanda can replicate.
4.3.1.3.2 Pro bono and judicare models in South Africa
and lessons learnt
The ethical rules of the advocate?s profession require
advocates to take on legal aid
work.206 The latter must take the
cases without compensation,207 but may recover their
198 These include private specialist law firms, independent
university law clinics, para-legal advice offices, and legal insurance
schemes.
199 It worthwhile to note that the Legal Aid Board has been set
up by the Apartheid Government in terms of the Legal Aid Act, 22, 1969.
200 Legal Aid Board Legal Aid Guide (1996).
201 See Legal Aid Act Section 3.
202 Legal Aid Guide, supra note 195, para 1.2.1.
203 Ibid. at para 3.1.
204 For instance in civil matters the Board must always be
satisfied that there is merit in the case and that there is a reasonable
prospect of success and recovery. See ibid.
205 See more details in Cook, supra note 196, 28.
206 See General Council of the Bar of South Africa Uniform
Rules of Professional Ethics rule 6.3.1.
207 Ibid. Rule 40 (5).
fees and disbursements at ordinary tariff rates if the
litigant is awarded costs.208 As noted above, since 1994 the Board
has been contracted on behalf of the state to deliver the legal services in
criminal cases required by the Constitution and this has had a major impact on
its ability to continue using the judicare approach.
One of the disadvantages of pro bono services is that
pro bono clients may not receive the same level of service as paying
clients, and many lawyers are reluctant to take on pro bono cases. As
Van Hennie rightly argues, chances of mounting a successful comprehensive legal
aid scheme based on pro bono work are minimal.209 Also, the
South African experience is that the judicare system works where there
is an adequate administrative structure to support it, proper accounting
systems are in place to deal with claims for fees and disbursements
expeditiously, and budget constraints keep pace with demand.210
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